State of Rajasthan v. Banshi Lal — 1983 DIGILAW 207 (RAJ)

AGRAWAL, J.—This appeal has been filed by the State against the judgment of the Sessions Judge, Jodhpur dated 25th June, 1973 in Criminal Appeal No 40/73. The Sessions Judge, by his judgment aforesaid, allowed the appeal filed by the respondent against the judgment dated 10th April, 1973 passed by the Excise Magistrate, Jodhpur and acquitted the respondent of the charge under section 9 of the Opium Act (hereinafter referred to as the Act). 2. The prosecution case, briefly stated is as under: On 14th November, 1969, at about 11 A.M. Mohan Lal (P.W. 6), Excise Inspector, Chittorgarh and Manohar Lal (P.W. 3) Excise Inspector, Bilara, conducted a search of the house of the respondent at Bilara and during the course of search of the said house, found a tin containing two bags. One of the bags contained 8 kgs. of opium and the other bag contained 1.60 kg. of opium. After taking samples of the contents, of both the bags, they seized both the bags and after placing them in the tin sealed the same. The packets containing the samples of the contents of the two bags were also sealed. Thereafter a report was made by Mohan Lal (P.W. 6) at P.S. Bilara. Along with the said report he submitted the sealed tin containing the two bags having 9.60 kgs of opium as well the two sealed packets of the samples of the contents of the two bags. The said report was registered at P.S. Bilara on 14th November, 1969 at 5.30 P.M. on the basis of the said report, a case under section 9 of the Opium Act was registered, against the respondent. After completing the investigation, the police filed a challan against the respondent in the Court of Excise Magistrate, Jodhpur and a charge under section 9 of the Opium Act was framed against the respondent. 3. The prosecution, in support of its case examined seven witnesses. Manohar Lal (PW.3) and Mohan Lal (P.W. 6) are the two Excise Inspectors, who had conducted the search and had seized the bags containing opium from the house of the respondent. Mohan Lal (P.W. 1) and Bhanwar Lal (P.W. 5) are the attesting witnesses of the seizure memo regarding the recovery of the bags of opium. The said attesting witnesses have, however, turned hostile. Swaroop Singh (P.W. 7) was the S.H.O. P.S. Bilara, who had conducted the investigation of the case. Mohan Lal (P.W. 1) and Bhanwar Lal (P.W. 5) are the attesting witnesses of the seizure memo regarding the recovery of the bags of opium. The said attesting witnesses have, however, turned hostile. Swaroop Singh (P.W. 7) was the S.H.O. P.S. Bilara, who had conducted the investigation of the case. Sohan Singh (P.W. 2) is the police constable, who had taken the samples of the contents of two bags from the office of the Superintendent of Police, Jodhpur to the Police Forensic Science Laboratory, Jaipur for chemical examination. Bheru Singh (P.W. 4) was posted at P.S. Bilara and had taken part in the investigation of the case. The prosecution also produced the report of the Assistant Director, Chemical Section, Police Forensic Science Laboratory C.I D., Rajasthan Jaipur (Ex. P. 5) to prove that the two samples which were taken from the two bags containing opium seized from the house of the respondent on chemical analysis were found to contain 5.37 and 6.63% morphine respectively. 4. The respondent in his statement under section 342 Cr.P.C., denied that any opium was recovered from his residence. 5. The Excise Magistrate, Jodhpur, by his judgment dated 10th April, 1973, held that from the evidence of the Excise Inspectors, Manohar Lal (P,W. 3) and Mohan Lal (P.W. 6), it was established that opium weighing 9 kgs. 600 gs. was recovered from the possession of the respondent and that he was in conscious possession of the same and, therefore, the offence under section 9(B) of the Act was fully established against the respondent. The Excise Magistrate therefore, convicted the respondent of the offence under section 9 (a) of the Act and sentenced him to simple imprisonment for a period of four months and fine of Rs. 500/- and in the event of non-payment of fine to undergo simple imprisonment for a further period of two months. 6. The respondent filed an appeal Criminal Appeal No. 40/73 against his aforesaid conviction and the sentence imposed by the Excise Magistrate, Jodhpur and the said appeal was allowed by the Sessions Judge, Jodhpur by his judgment dated 25th June, 1973. The Sessions Judge rejected the contention of the respondent that since the search of his house was illegal, having been conducted in contravention of the provisions of section 165 Cr.P.C. the respondent could not be convicted on the basis of the evidence obtained during the said search. The Sessions Judge rejected the contention of the respondent that since the search of his house was illegal, having been conducted in contravention of the provisions of section 165 Cr.P.C. the respondent could not be convicted on the basis of the evidence obtained during the said search. The learned Sessions Judge held that the illegality in search would not mean that the evidence that has been obtained as a result of the search should not be made the basis for conviction and that the only effect of the illegality in the search was that the evidence regarding the seizure has to be carefully scrutinized. The learned Sessions Judge also rejected the contention of the accused-respondent that in view of the fact that the two attesting witnesses of the case, namely, Mohan Lal (P.W. 1) and Bhanwar Lal (P.W. 5) have turned hostile, the search or seizure cannot be said to have been established. The learned Sessions Judge was of the view that both the attesting witnesses had been won over and that the defence could not make use of their testimony and that reliance could be placed on the evidence of the two Excise Inspectors, namely, Manohar Lal (P.W. 3) and Mohan Lal (P.W. 6) and on the basis of their evidence, it was established that the house of the accused-respondent was searched and opium was recovered from the same. The learned Sessions Judge also rejected the contention of the accused-respondent that the prosecution could not rely on the report of the Assistant Director, Chemical Section, Police Forensic Science Laboratory, C.I.D. Rajasthan, Jaipur, as the same was not put to the accused-respondent during the course of his examination under section 342 Cr.P.C. The learned Sessions Judge held that the accused-respondent during the course of his examination, under section 342 Cr.P.C. had been asked as whether the opium was recovered from his possession. The learned Sessions Judge, however, accepted the contention of the accused-respondent that the prosecution had failed to prove that the samples of the contents of the two bags which were sealed by the Excise Inspectors at the time of the recovery, the same which were sent to the Police Forensic Science Laboratory and further that the seals had remained intact till these samples reached the said Laboratory. The learned Sessions Judge held that it was incumbent upon the prosecution to adduce evidence to show that the samples of the Chemical Examiner in the same condition, in which it was taken by the Excise Inspector and that in the present case, there is no evidence to show the nature of the seal with which the packets were sealed when they reached the office of the Assistant Director, Police Forensic Science Labo-ratory, C.I.D., Rajasthan, Jaipur and in the absence of this evidence, it was not possible to believe that these samples were bearing the same seals which were put on the packets at the time of the seizure when they reached the office of the Assistant Director, Police Forensic Science Laboratory and that in the absence of such an evidence, it could not be held that the seals of those samples were not tampered with. The learned Sessions Judge, therefore, held that the report of the Assistant Director, should not be read against the accused respondent to fasten the guilt on him and he acquitted the accused-respondent of the offence under section 9 of the Opium Act. 7. Shri M.C. Bhati, the learned Public Prosecutor appearing for the State has submitted that the learned Sessions Judge was in error in holding that the report (Ex. P. 5) of the Assistant Director, Chemical Section, Police Forensic Science Laboratory, Rajasthan, Jaipur should not be read against the accused to fasten the guilt on him. The learned Public Prosecutor has pointed out that in the report (Ex. P.5),it has been stated that The parcel(s) of two packets enclosed within dirty white cloth cover which were properly sealed with impression of a seal corresponding with the seal impression forwarded". The learned Public Prosecutor has submitted that in view of the said statement in the report, it must be held that the seals, which were placed on the packets of the samples at the time when they were sealed by the Excise Inspector, were found intact by the Assistant Director and, therefore, it cannot be said that the seals had been tampered and there is no reason not to accept the said report. The learned Public Prosecutor has further submitted that even if the report excluded from consideration, there is other evidence to show that the contents of the bags found in the house of accused-respondent during the course of search conducted on 14th November, 1969 were opium. In this connection, the learned Public Prosecutor has invited our attention to the evidence of the Excise Inspector, Mohan Lal (PW, 6), who has stated that the opium was smelt and tasted. The learned Public Prosecutor has submitted that in view of the aforesaid evidence of the Excise Inspector that the article, which was seized from the house of the respondent, was opium, has not been challenged during the course of cross-examination and, therefore, it must be held that the said article was opium. In support of his aforesaid submission, the learned Public Prosecutor has placed reliance on the decision of the Supreme Court in Baidyanath Mishra vs. The State of Orissa (1) and the decisions of this Court in State vs. Sukh Ram (2) and Ana Ram vs. State of Rajasthan (3). 8. Shri P.L. Chaudhary, the learned counsel for the accused-respondent has submitted that the learned Sessions Judge was right in holding that the report (Ex. P.5) should not be read against the accused-respondent to fasten the guilt on him and that the said view of the Sessions Judge is in consonance with law laid down by the Supreme Court in Ukha Kolhe vs. State of Maharashtra (4) and The State of Rajasthan vs. Daulat Ram (5) as well as by this Court in Ratan Lal vs. The State(6). Shri Chaudhary has also submitted that on the basis of the evidence of Mohan Lal (PW 6) it cannot be held that the article which was seized from the house of the respondent was opium because Mohan Lal has no where said that he had himself smelt and tasted the same and found it to be opium. Shri Chaudhary has also submitted that the circumstance that the article that was seized from the house of the respondent had been found to be opium on the basis of tasting and smelling was not put to the accused-respondent during the course of his examination under section 342 Cr.P.C. and since the accused-respondent was not afforded an opportunity to offer his explanation about the said circumstance, the same should not be relied against him. Shri Chaudhary has also submitted that since the seizure of the opium was conducted in contravention of the provisions of section 165 Cr.P.C. the aforesaid search and seizure cannot be made the basis for the conviction of the accused-respondent for the offence under section 9 (a) of the Opium Act. In support of his aforesaid contention, Shri Chaudhary has placed reliance on the decision of the Supreme Court in K.L. Subhaya vs. State of Karnataka (7). 9. In the present case, from the evidence of Manoharlal (PW 3), it appears that after the search had been made and the two bags containing opium had been recovered, the Excise Inspectors had taken out samples of the contents weighing 30 gms. from each of the bags and that the said samples were placed in separate packets and the same were sealed and the bags were seized and were placed in the tin which was also sealed and the sealed tin as well as the sealed packets of samples were delivered at the police station when the report was lodged. Swaroop Singh (PW 7), S.H.O., P.S. Bilara, has stated that at the time when the report was lodged, the property recovered in a sealed condition had been delivered to him and that he had sent the same for chemical examination. The said witness had stated that he had sent the same on 25th November, 1969 to the office of Superintendent of Police, Jodhpur through constable Dhoor Singh and from the office of Superintendent of Police, Jodhpur it was taken to Jaipur by constable Sohan Singh. Constable Sohan Singh had been examined, as PW 2, and he has deposed that in 1969, he was posted in police lines at Jodhpur and he had taken the two packets from the office of the Superintendent of Police, Jodhpur to Jaipur for the purpose of chemical analysis and had deposited the same at Jaipur. The report (Ex. P5) of the Assistant Director contains a statement to the effect that the two packets enclosed within dirty white cloth cover which were properly with impression of a seal corresponding with the seal impression forwarded. The report (Ex. P5) of the Assistant Director contains a statement to the effect that the two packets enclosed within dirty white cloth cover which were properly with impression of a seal corresponding with the seal impression forwarded. It would thus appear that although the prosecution has adduced evidence that the samples of the bags which were seized by the Excise Inspectors Mohanlal and Manohar Lal after they had conducted the search in the house of the accused-respondent had been placed in separate packets which were duly sealed and the said sealed packets were delivered by the Excise Inspectors to the S.H.O., P.S. Bilara, the prosecution has not adduced evidence to show that during the period the sealed packets remained at P.S. Bilara and till they were sent to the office of the Superintendent of Police, Jodhpur for being forwarded to the Forensic Science Laboratory, Jaipur, their seals had remained intact. The prosecution has also not examined the constable who had taken the said samples from the P.S. Bilara to the office of the Superintendent of Police, Jodhpur. Nor has the prosecution adduced any evidence with regard to the nature of the impression of the seal which was put on the packets by the Excise Inspectors as well as the nature of the seal impression, which was forwarded to the Forensic Science Laboratory along with the sealed packets. In the absence of such evidence about the nature of the seals, it is not possible to hold that the seals that were found on the packets of samples by the Assistant Director, Chemical Section, Police Forensic Science Laboratory, and which were tallied with the seal impression that were forwarded with the packets were the very seals which were put on the said packets by the Excise Inspectors Mohan Lal and Manohar Lal at the time when the said packets containing samples were sealed by them, in the circumstances, we are of the view that the learned Sessions Judge cannot be said to have committed any error, in law, in holding that the prosecution had failed to prove that the packets containing the samples were bearing the same seals which were put on the packets at the time of the seizure when they reached the Police Forensic Science Laboratory and the reliance could not be placed on the report (Ex. P5) to fasten guilt on the accused respondent. 10. P5) to fasten guilt on the accused respondent. 10. We are, however, in agreement with the submission of the learned Public Prosecutor that even if the report (Ex. P5) of the Assistant Director, Chemical Section, Police Forensic Science Laboratory, C.I.D. Rajasthan, Jaipur is excluded from consideration, there is other evidence in the present case on the basis of which it is established that the article, which was seized from the house of the accused-respondent was opium. In this regard, reference may be made to the statement of Mohanlal (PW 6) Excise Inspector who stated, during the course of examination-in-chief, that on search of the house of the accused-respondent opium was found in a tin and that the said opium was smelt as well as tasted. 11. In Baidyanath Mishra vs. The State of Orissa (supra), the Supreme Court was dealing with a case where the prosecution had not adduced any evidence to prove that the article, which was seized had been chemically examined and was found to be opium and an argument was advanced before the Supreme Court that in the absence of such evidence of chemical analysis, the article which was seized could not be taken to be opium and the conviction under sec. 9 of the Act could not be made. The Supreme Court rejected the said contention and observed as under : — "It is true that opium is a substance which once seen and smelt can never be forgotten because opium possesses a characteristic appearance and a very strong and characteristic scent. It is possible for people to identify opium without having to subject the product to a chemical analysis. It is only when opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being apprehended by the senees that a chemical analysis may be necessary Two other witnesses who were cultivators and who knew what they were talking about said that it was opium. It is only when opium is in a mixture so diluted that its essential characteristics are not easily visible or capable of being apprehended by the senees that a chemical analysis may be necessary Two other witnesses who were cultivators and who knew what they were talking about said that it was opium. If the appellants, who themselves were licensed about vendors of opium, had the slighttest doubt the correctness of these statements they could have challenged them either by cross-examination or by suggesting to the court that the substance be analysed to determine whether it was opium or not." In view of the aforesaid judgment of the Supreme Court, it must held that chemical analysis for the purpose of establishing that the article seized is "opium", as defined in section 3 of the Act, is necessarily only in case where the article happens to be the as referred to in clause (iii) of the said definition and that chemical analysis would not be necessary in respect of article falling within clauses (i) and (ii) of the said definition. 12. Similarly in State vs. Sukh Ram (Supra), this Court has held that people by smell can identify opium and that on such examination it was found to be opium was sufficient to hold that the suspected article contained opium. 13. In Anaram vs. State of Rajasthan (supra), this Court, has referred to the decision of the Supreme Court in Baidyanath Mishra vs. The State of Orissa (Supra) and has observed that it is only in case of a mixture that an analysis is necessary in order to determine whether the mixture opium or not but where the article is spontaneously coagulated juice capsules of poppy and has not been submitted by any manipulation, no chemical examination is necessary. 14. In the present case, the Excise Inspector Mohan Lal(PW6) has stated that on search of the house of the respondent, opium was found in a tin and that it was smelt as well as tasted. 14. In the present case, the Excise Inspector Mohan Lal(PW6) has stated that on search of the house of the respondent, opium was found in a tin and that it was smelt as well as tasted. It is true that he has not specifically stated that he had himself smelt and tasted it but in the context in which the statement is made it must be assumed that the witness had himself smelt & tasted it and had found to be opium In this regard it may be observed that during the course of cross-examination no question was put to the witness on this part of his statement and his testimony that opium was found in the tin and that it was smelt and tasted, has not been challenged by the accused respondent, In the circumstances, there is no reason why the testimony of Mohan Lal (PW 6) that the contest of bags were smelt and tasted and it was opium, should not be accepted. 15. As regards the examination of the accused-respondent under section 342 Cr.P.C, it may be observed that it was definitely put to him during the course of the aforesaid examination that Mohan Lal (PW 6) had stated that on 14th November, 1971, the house of the accused-respondent was searched and opium was found in a tin and the said opium was weighed and was seized and sealed. In answer to the aforesaid question, the accused-respondent stated that the said statement was wrong and that no opium was recovered from his house. It would thus be seen that even though the circumstance of recovery of opium from his house, was put to the accused-respondent during the course of his examination under section 342 Cr.P.C., the accused-respondent, while denying the said recovery, did not say that the article, which is said to have been recovered from his house is not opium. 16. In the circumstances, we are of the opinion that the prosecution has established, beyond reasonable doubt, that the article which was recovered from the house of the accused-respondent during the course of search on 14th November, 1960 was opium. Once it is held that the said article was opium, it must be held that the accused-respondent was in unlawful possession of opium and has committed the offence punishable under section 9(a) of the Act. 17. Once it is held that the said article was opium, it must be held that the accused-respondent was in unlawful possession of opium and has committed the offence punishable under section 9(a) of the Act. 17. Shri Choudhary has, however, submitted that the search of the house of the accused-respondent was conducted in disregard of the provisions of section 155 Cr.P.C. in as much before conducting the said search, the Excise Inspectors did not record in writing the grounds of his belief as required under sub-section (1) of section 165 and since the search was conducted in disregard of the provision of section 165, the seizure of the bags found in the tin was also illegal and the evidence obtained as a result of the said illegal search and seizure, could not be make the basis for the conviction of the accused-respondent. We are unable to accept the a foresaid contention. 18. In Radha Kishan vs. State of Uttar Pradesh (8), the Supreme Court has held that any illegality in the search and seizure would not vitiate the conviction recorded on the basis of the evidence obtained as a result of search and seizure and in this regard, it has been laid down as under :— "So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Ss. 103 and 165 Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues." It is true that in Subhaya vs. State of Karnataka Supra), the Supreme Court, after finding that the search in that case had been conducted in disregard of the provisions of section 54 of the Mysore Excise Act, have held that since the entire search was without jurisdiction, it vitiated the conviction also. In the said case, the learned Judges have not noticed the earlier decision of the Supreme Court in Radha Kishan vs. State of Uttar Pradesh (8). In the said case, the learned Judges have not noticed the earlier decision of the Supreme Court in Radha Kishan vs. State of Uttar Pradesh (8). The decision in Radha Kishan vs. State of U. P. (Supra) was given by a Bench consisting of three Honble Judges whereas the decision in K.L. Subhaya vs. State of Karnataka (Supra) was given by a Bench consisting of 2 Honble Judges. In our view, the laid down by the Supreme Court in Radha Kishan vs. State of Uttar Pradesh (Supra) is binding on us ∈ view of the said decision, it must be held that any illegality in the search and seizure made in contravention of the provisions of section 165 Cr.P.C. would not vitiate a conviction recorded on the basis of the evidence obtained as a result of the said search and seizure. 19. The decision of this Court in Mithu Khan vs. State (9) has no application to the present case inasmuch as in that case, the Court was dealing with a situation where resistance was placed against an illegal search & injuries, had been caused to the persons conducting the search and the question was whether any offence could be said to have been committed on account of the injuries inflicted while resisting the illegal search. The aforesaid decision falls within the principal laid down by the Supreme Court in Radha Kishan vs. State of Uttar Pradesh (Supra) that when an illegal search is being conducted,the person whose premises are sought to be searched, can resist against the said search. The said decision in Mithu Khan vs. State (Supra) does not deal with a situation where evidence obtained as a result of illegal search has been produced in Court and a conviction has been recorded on the basis of the said evidence. Such a situation has been expressly dealt with by the Supreme Court in Radha Kishan vs. State of U. P. (Supra) and in view of the said decision it must be held that the evidence that was obtained as a result of the search of the house of the accused-respondent could be made the basis for the conviction of the accused-respondent of the offence under section 9 (a) of the Act and the said evidence cannot be excluded from consideration merely because the search of the house was conducted in contravention of provisions of section 165 Cr.P.C. 20. It must, therefore, be concluded that the accused-respondent was found in possession of opium at the time when his house was searched on 14th November, 1969 and the accused-respondent has committed the offence punishable under section 9 (a) of the Act. The accused respondent was rightly convicted of the said offence by the Excise Magistrate, Jodhpur & the order passed by the Sessions Judge acquitting the accused-respondent of the offence under section 9 (a) of the Act, cannot be upheld. The appeal is, therefore, allowed, the judgment dated 25th June, 1973 passed by the Sessions Judge, Jodhpur in Criminal Appeal No. 40/73 is set aside and the judgment dated 10th April, 1973 passed by the Excise Magistrate, Jodhpur in Criminal Case No. 156/72 convicting the accused-respondent of the offence under sec. 9 (a) of the Act and sentencing him to simple imprisonment for a period of four months and a fine of Rs. 500/- and in the event of non-payment of fine, to further undergo imprisonment for a period of two months, is restored. The Sessions Judge, Jodhpur may take the necessary steps for the arrest of the accused-respondent for the purpose of his being committed to prison to undergo the sentence imposed on him.